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More crime and corruption in the federal judiciary

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U.S. District Judge Walter S. Smith, Jr. of Waco may have illegally accepted free legal services from an attorney who practiced in his courtroom, according to documents that I obtained from that attorney, and it looks like Judge Smith’s colleagues are trying to cover up the extent of his sexual misconduct. Meanwhile in D.C., Hillary Clinton’s personal lawyer filed charges to disbar me, apparently to cover up the misconduct of his former law partner, U.S. District Judge Ellen S. Huvelle.

David Kendall, who chaired the D.C. court’s grievance committee, began representing the Clintons before the Monica Lewinsky scandal, and he and Judge Huvelle worked together at Williams & Connolly, L.P. from 1978 to 1990. They were partners from 1984 to 1990. As I explained in October, Judge Huvelle secretly and illegally communicated with several attorneys around the same time that she was covering up their crimes in her courtroom.

I filed a judicial misconduct complaint, and her colleagues have blocked an investigation for more than a year. At the same time, Mr. Kendall’s committee has blocked an investigation into the attorneys for more than a year. Instead, Mr. Kendall and his committee decided to seek my disbarment.

More on that below, but first the news about Judge Smith. After filing a sexual misconduct complaint against Judge Smith, I learned that attorney Greg White of Waco had been secretly representing the judge in that investigation, and that neither of them had disclosed their relationship to the attorneys who appeared before Judge Smith and opposite Mr. White.

I filed a supplemental complaint against Judge Smith and a bar grievance against Mr. White back in October. The Fifth Circuit Judicial Council reprimanded Judge Smith, and the State Bar of Texas’s Office of Chief Disciplinary Counsel (“OCDC”) ordered Mr. White to respond to my grievance. You can read his response by clicking here. It was written by Waco attorney Ben Selman, and it raises a lot more questions than it answers, as noted in a six-page reply that I filed with the OCDC today.

I had wondered whether Mr. White represented Judge Smith for free, and Mr. White’s response leads me to believe that his services were offered at no charge, at least during the early stages of the investigation. At the time he began drafting a motion for Judge Smith, for example, he wasn’t sure whether he was ghost writing the motion or entering a formal appearance. Read Mr. White’s memorandum and draw your own conclusions. If the services were free, then they were an illegal gift. If there was a quid pro quo in exchange for the services, that’s a felony. According to the memorandum, at least one attorney who appeared before Judge Smith seems to have wondered whether a ruling was influenced by the judge’s relationship with Mr. White. Hence today’s request for a criminal referral.

I am still amazed that Mr. Selman’s letter included a copy of the January 27, 2016 memorandum that he received from Mr. White. As I explained in my letter to the OCDC, Mr. Selman probably thought he was insulating his client from the consequences of making false statements directly to the bar. If something in the memorandum proved to be false, Mr. Selman could argue that Mr. White’s statement had been made to him, not to the OCDC. If that was his strategy, it comes at an awfully high price: either Mr. White has waived attorney-client privilege for his communications with Mr. Selman, or Mr. Selman has violated the disciplinary rules himself by disclosing confidential communications from his client. Either possibility looks like incompetence (and Mr. Selman is an adjunct professor at Baylor Law School, as is Mr. White).

In his letter, Mr. Selman basically offered a Nuremberg Defense for his client, i.e., that Mr. White was “just following orders” from his client, Judge Smith. While I don’t doubt that Judge Smith put Mr. White in a difficult position – after all, it’s hard to say “no” when a federal judge summons you to his chambers to request a favor – I have a hard time feeling sorry for Mr. White. As explained in my letter, it appears that Mr. White misrepresented the facts during an interview with Texas Lawyer, falsely claiming (among other things) that Judge Smith thought the woman he assaulted, whom I’ll call “E.S.”, was romantically interested in him. If Mr. White was quoted correctly, then he would have known that his statements were false, in which case he violated the disciplinary rules yet again.

That leads me to some interesting tips that I received from a source several weeks ago. First, my source said a witness in the Fifth Circuit investigation was told that investigators were not interested in any incidents of sexual misconduct other than the specific one that I originally reported. Second, my source said a current female employee of Judge Smith “broke down” during questioning and described many years of sexual harassment from the judge. Third, my source said Judge Smith tried to convince the Fifth Circuit that E.S. had first made romantic advances toward the judge. According to the source, Judge Smith told the Fifth Circuit that E.S.’s husband was one of several Waco firefighters who had a case pending before the judge, and that she made romantic advances toward the judge to gain preferential treatment in her husband’s case.

So how believable is my source? The last tip above was subsequently corroborated by Mr. White’s memorandum to Mr. Selman, so I am inclined to think that my source knows what he/she is talking about. According to the memorandum, Mr. White filed a “motion to dismiss” my judicial misconduct complaint after consulting with Judge Smith. That’s an amazing thing in and of itself, because you’d think a federal judge and an attorney would have enough sense to read the rules governing judicial misconduct proceedings. If they had, they would have learned that there is no such thing as a motion to dismiss a judicial misconduct complaint. Then again, when you’re powerful like Judge Smith or politically connected like Mr. White, you’re probably not in the habit of worrying about what the law actually says. But I digress.

The “motion to dismiss” apparently spun the tale of E.S. making romantic advances in order to gain favorable treatment for her husband’s lawsuit. Unfortunately for Judge Smith and Mr. White, a quick search of the docket revealed that the lawsuit was not filed until a year after Judge Smith grabbed and groped E.S. And E.S.’s husband did not join the lawsuit until a year after that. Oops.

Note how Mr. White, in his memorandum, tried to blame the Fifth Circuit for the misrepresentations about E.S. I’m sure the Fifth Circuit will love that (and that’s why I sent the court a copy of the memorandum). Note also that Mr. White deleted text messages that he had exchanged with Judge Smith. What were those messages about? And why did he delete them? Finally, note how hard Mr. Selman tried to keep me from making any of this public, i.e., “it is requested that Mr. Clevenger be instructed that this matter is confidential, that Mr. White does not waive confidentiality, and that Mr. Clevenger has a duty to maintain the confidentiality of the proceeding.”

Well, fancy pants, “it is requested” that you read the bar rules before falsely claiming that I have “a duty to maintain the confidentiality of the proceeding.” While you’re at it, take some remedial courses on the First Amendment, where you’ll learn that I have the Constitutional right to let the public know how unsavory and inept Waco’s “elite” lawyers often are. And if you don’t like the First Amendment, find another country.

Now, back to the first two tips from my source. If the Fifth Circuit told its investigators not to look into any other instances of sexual misconduct, that would explain why there was nothing in its December 4, 2015 reprimand about the other alleged victims whom I reported. As bad as that might be, it’s less troubling than the possibility that a current employee revealed sexual misconduct during the investigation, only to have it ignored by the Fifth Circuit.

I have not yet corroborated those tips, but I believe they are entirely plausible. Just read the information below about how far the judges of the D.C. Circuit have gone to protect Judge Huvelle. And remember how far the Fifth Circuit went to downplay the misconduct of former U.S. District Judge Samuel Kent of Galveston. If not for the determination of his victims and the dogged reporting of the Houston Chronicle, his crimes would have been swept under the rug.

In recent months, David Kendall has been in the headlines because Hillary Clinton gave him classified emails that she had been hiding storing on her private server, even though Mr. Kendall did not have the necessary security clearances to receive those emails. He is now representing her in the ongoing FBI investigation, so I guess I should be flattered that he took time out of his busy schedule to try to disbar me. After all, Redstate.com described Mr. Kendall as the consigliere and “Tom Hagen of the Clinton Crime Family,” so who could be better qualified to silence me?

I am reminded of an apocryphal story usually attributed to Abraham Lincoln. As the story goes, an abolitionist was tarred, feathered, and carried out of town on a rail. When asked about the event later, the abolitionist said, “But for the honor of the occasion, I’d rather it had not happened.”

While I’d rather not get disbarred, I suspect that outcome has already been determined. That is why, in a motion that I filed on February 5, I asked the judges in D.C. to transfer my case to judges from outside of the district. As explained in that motion and in related motions to dismiss and permit discovery, Judge Huvelle’s colleagues already have gone to perverse lengths in order to protect her from the consequences of her misconduct. (Incidentially, Judge Sri Srinivasan of the D.C. Circuit is one of the judges covering up for Huvelle, and Srinivasan is being touted as a nominee to replace the late Justice Antonin Scalia. If President Obama nominates Srinivasan for a Supreme Court appointment, he can be sure that I will contact Senate Republicans and hang the albatross around Srinivisan’s neck). Meanwhile, the D.C. District Court will not even tell me who serves on the secret committee that is prosecuting me (more on that below).

In my October 26, 2015 post, I wrote about how Chief Judge Merrick Garland of the D.C. Circuit had been holding my judicial misconduct complaint in limbo for nine months. In September, I had sent Judge Garland a letter explaining that it was not his job to investigate my complaint, but only to appoint an investigative committee, dismiss the case, or transfer it. I also explained that Judge Garland and all of his colleagues on the D.C. Circuit (including Srinivasan) had serious conflicts of interest, therefore I asked him to transfer my complaint out of the D.C. Circuit. I sent another letter to Judge Garland on January 16, 2016 asking him to act on my complaint, but neither he nor any of his colleagues have responded. The complaint against Judge Huvelle has now been in limbo for more than a year.

Similarly, Mr. Kendall and his committee have refused for more than a year to act on my bar grievance against the attorneys who were secretly and illegally communicating with Judge Huvelle. The ex parte communications occurred around the same time that she was covering up the crimes that attorneys Patrick Kearney, Michael Bramnick, and their colleagues had committed in her courtroom. Those attorneys had forged a signature, fabricated an affidavit, suborned perjury, knowingly filed false discovery response in order to hide a witness, and tampered with evidence (as explained on DirtyRottenJudges.com).

I also learned (after the trial) that Mr. Kearney’s and Mr. Bramnick’s client, William C. Cartinhour, Jr., is a paranoid schizophrenic and a pathological liar. That is significant because a $7 million verdict against my client was largely based on Mr. Cartinhour’s testimony. It now appears that Mr. Cartinhour was actively psychotic during his videotaped trial testimony, but his attorneys knowingly misrepresented the problem as one of old age, anxiety, and heart trouble (they also altered his medical records to remove all references to schizophrenia). Worse, Judge Huvelle may have helped conceal the fraud, because there is some evidence that she learned about the schizophrenia while communicating ex parte with a witness, namely Dr. Stanley Slater of Maryland, who was Cartinhour’s psychiatrist.

DirtyRottenJudges.com explains how Judge Huvelle later sanctioned me $123,802.17 after I filed a lawsuit that threatened to reveal her collusion with Mr. Cartinhour’s attorneys. I appealed the sanction, but the D.C. Circuit affirmed it without an explanation (as usual). Her colleagues also sanctioned me in related bankruptcy cases that were pending in D.C., and the State Bar of Texas filed charges against me based on Judge Huvelle’s sanctions order.

The SBOT was aware of all the sanctions orders in D.C., but it ultimately dismissed the charges related to D.C. after I obtained further proof that (1) Mr. Cartinhour’s attorneys had forged his signature onto an affidavit,as I had said all along, and (2) Judge Huvelle was communicating ex parte with those attorneys while she covered up their crimes. (Hopefully, the prior dismissal of charges in Texas will protect my law license there, even if I subsequently get disbarred in D.C.). In other words, the Texas bar implicitly acknowledged that the sanctions in D.C. were tainted by fraud and collusion, but the D.C. committee still wants to use those same sanctions to disbar me.

The only explanation for this disparity is retaliation. On the one hand, the committee will not even investigate the attorneys who obstructed justice and committed crimes against the court. On the other, it filed charges seeking disbarment – the most severe punishment available – for the attorney who blew the whistle (i.e., me).

The retaliation doesn’t end there. Shortly after I launched DirtyRottenJudges.com and revealed all the evidence of fraud and collusion, one of Judge Huvelle’s colleagues entered an anti-filing injunction against my client, Wade Robertson. Judge Royce Lamberth, the former chief judge of the D.C. District, had been presiding over a bankruptcy appeal that arose from the dispute between Mr. Robertson and his former partner, Mr. Cartinhour. As a result of his order, Mr. Robertson cannot challenge the $7 million judgment entered by Judge Huvelle, even though we now know unequivocally that the judgment was tainted by fraud and judicial misconduct. I’ve informed Judge Lamberth repeatedly that he has a legal duty to inquire into the fraud, but he has ignored the fraud and left the injunction in place.

Mr. Robertson appealed the injunction, but the D.C. Circuit did what it usually does when it is trying to hide something dirty or indefensible: it affirmed the order without an explanation. Time and again, the D.C. Circuit has refused to acknowledge Judge Huvelle’s misconduct, affirming her decisions with little or no explanation and acting as if the issue was never raised.

In a sane world, Judge Huvelle’s colleagues would have demanded an FBI investigation as soon as the fraud was revealed, but this is not a sane world. I notified the FBI and the Justice Department about the fraud more than a year ago, but neither agency will touch the case. No surprise there. As I explained in my letter to the Fifth Circuit Chief Judge Carl Stewart, the FBI and the Justice Department generally will not investigate a federal judge unless they first get a “green light” from other members of the judiciary. That’s understandable, since nearly all of their cases go before federal judges, and the federal judiciary is a powerful fraternity.

Even so, the disbarment proceeding could really backfire on Mr. Kendall, Judge Huvelle, and the other committee members if the presiding judges follow the law (admittedly, that’s a very big “if” in the D.C. District). My motion to dismiss is based on a claim of selective prosecution, and that should allow me to subpoena records and question witnesses about the committee’s double standard. In the separate motion to permit discovery, I noted that I am legally entitled to challenge all of the sanctions orders entered against me, therefore I have the right to any evidence that Judge Huvelle was colluding with Mr. Cartinhour’s attorneys. I doubt that Mr. Kendall, et al. considered that possibility when they filed the charges against me. Then again, they may know something that I don’t, e.g., the presiding judges’ propensity for following the law.

THE DOUBLE SECRET D.C. GRIEVANCE COMMITTEE

Since my days as a reporter, I have always bristled when government hacks demand to know why I am seeking public information. Public information belongs to the public, not the government, and the bureaucrat at the front desk has no more right to ask why I want that information than to ask why I want to read a certain library book.

Last week, I sent an email to Beverly Tenor, the deputy clerk who serves as the clerk to the D.C. grievance committee, seeking the names of the committee members who served with Mr. Kendall. She did not respond to that email, although she did respond to another, so I followed up with a phone call yesterday morning.

Ms. Tenor immediately insisted that I tell her why I needed to know the names of the committee members. I told her the information was either public or it was not, and I should not have to tell her why I wanted the information. I also told her that the D.C. Circuit made the names of its grievance committee members public, but she kept insisting that I tell her why I wanted to know the names. I finally told her that I wanted to explore if there were any other connections like the one between Mr. Kendall and Judge Huvelle. She responded that Mr. Kendall is no longer on the committee, but she did not release the names of the committee members.

The very idea of a secret prosecution committee is genuinely un-American. The committee has the power to issue subpoenas, hold evidentiary hearings, and prosecute attorneys, so the public has every right to know who the are. And if the committee is stacked with Judge Huvelle’s former law clerks or Mr. Cartinhour’s lawyers, I have a right to know that.

Forgive me if I sound like I don’t trust the federal judiciary, but I don’t trust the federal judiciary. Far too often, America’s life-tenured oligarchs operate outside the realm of public scrutiny. Unlike most state court judges, for example, a federal judge can remove court documents from public view without any notice or explanation. I once filed a court document that implicated U.S. District Judge Vanessa Gilmore of Houston in misconduct, and I discovered several years later that she had quietly hidden the document from public view. While most states impose stringent requirements for hiding or sealing court documents, Congress has not imposed such requirements on the federal judiciary.

As Justice Louis Brandeis famously wrote in 1913, “Sunlight is said to be the best of disinfectants.” Unfortunately, the modern federal judiciary seems to believe that it is above the law, and the last thing it wants is sunlight. Since the 1980s, legal scholars have bemoaned the growing tendency among federal appellate courts to render decisions without explanations, as the D.C. Circuit has repeatedly done with Judge Huvelle. According to the last survey that I saw, about 80 percent of federal appellate decisions are rendered with little or no explanation. Even some federal judges have acknowledged that this practice fosters corruption in the judiciary, if for no other reason than the fact that federal judges no longer think they owe anybody an explanation for anything. Meanwhile, as a practical matter, you can spend tens of thousands of dollars on an appeal and not know why you won or lost.

Congress needs to wake up and pay attention, because the problem is not going to solve itself.

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All of the family members of the accused must be blocked, because no one is commenting. I almost miss them. Haven’t been called really, really nasty names in some time now.

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LawFlog is the blog of Ty Clevenger, a Texas attorney who lives in Manhattan. Posts are irregular at best (and Dulcolax doesn't seem to help). You can reach Ty at tyclevenger at gmail dot com, you can follow Lawflog on Facebook or Twitter (@Ty_Clevenger), or you can leave a voice message at 979-985-5289.